Lay Witness Can Testify About Pot

A woman was convicted in a bench trial of distributing a controlled substance to a person under 21. The minor was her 18-month-old daughter whom she had smoke marijuana from a waterpipe (bong). But was it marijuana? A lay witness testified that it was, but was that testimony property admitted?

The chief witness was the friend who turned her in. The friend testified that they were smoking residue scraped from the side of the bong. Based on her 20 years of experience smoking marijuana, she said that the residue was marijuana residue and had chunks of marijuana. Moreover, she also smoked from the same bong that the toddler did, and the taste and smell of the substance and the effect it had on her led her to conclude that it was marijuana.

The Ninth Circuit found no error in admitting the testimony. It also found there to be sufficient evidence to convict. It reversed the trial judge's interpretation of a sentencing statute and remanded for a new, shorter sentence. United States v. Durham, 464 F. 3d 976 (9th Cir. Sept. 22, 2006), Findlaw link.